Solving the Housing Crisis
An accomplished land use litigator displays his disdain for zoning, a century-old practice in use nationwide. What does he have against maintaining nice neighborhoods? Does desiring public safety, low density, and low taxes make one a “NIMBY”?
This essay originally appeared in Law & Liberty on November 18, 2024 (here). Thanks to Real Clear Markets (here) and Real Clear Books & Culture (here)!
Classical liberals properly regard property rights as an indispensable pillar of a free society. James Burling has been litigating property rights for over 40 years at the Pacific Legal Foundation, a public interest law firm headquartered in California that pioneered the defense of property owners against government interference. Since PLF was founded in 1973, it has managed to have 20 of its cases accepted for review by the U.S. Supreme Court, winning 18 victories, including the landmark precedent in Nollan v. California Coastal Commission (1987). This is an astounding track record. Burling himself argued and won a major property rights case in 2001, Palazzolo v. Rhode Island. Through their representation of property owners, Burling and his PLF colleagues are responsible for much of the Supreme Court caselaw in the areas of regulatory takings, confiscatory land use restrictions, and environmental overreach. Accordingly, few people are better equipped to write a book about property rights than Burling is.
Burling’s book, Nowhere to Live: The Hidden Story of America’s Housing Crisis, is a wide-ranging examination of the various ways government regulation has reduced the amount of housing in America, contributing to—or even creating—the current affordability crisis that makes buying a home unattainable for many aspiring owners. The housing market is subject to the rules of economics: supply and demand. If demand exceeds supply, prices go up. Government regulation restricts supply.
Burling tackles eminent domain, so-called “urban renewal,” tax increment financing, rent control, public housing, affordable housing mandates, government-imposed development fees, and the tyrannical abuse of environmental laws such as the Endangered Species Act, the Clean Water Act, and California’s uniquely restrictive land-use permitting statute (signed into law by Governor Ronald Reagan in 1970), the California Environmental Quality Act (or CEQA). Burling describes CEQA as unleashing “the equivalent of the bubonic plague on California housing development.” Laws such as CEQA contribute to the inadequate supply of housing in California (both apartments and single-family homes), driving up prices and rents.
Burling’s treatment of these issues is surefooted, sensible, and illuminating, and I would recommend the book to readers interested in an easy-to-follow overview. Burling also suggests a variety of solutions to increase the supply of housing, which mostly consist of reducing the burden of government regulation. He urges a “radical reset” that would restore “Adam Smith’s invisible hand.” However, the book is marred, in my opinion, by Burling’s preoccupation with the nation’s ubiquitous zoning laws, in place for over 100 years, which he blames for homelessness, “the collapse of housing affordability,” “deliberate[ly]…maintain[ing] economic and racial segregation,” “making it more difficult for the poor and working classes to leave the ghettos,” “deliberately exclud[ing] the poor,” and keeping “immigrants and racial minorities away from nice neighborhoods.”
Burling contends that the concept of a city or county prescribing permitted uses of real property within its jurisdiction—with different “zones” for commercial, industrial, agricultural, residential, multi-family dwellings, etc.—was motivated by the type of overtly-racial apartheid laws enacted by the city of Baltimore in 1910 and by Louisville, Kentucky in 1914. Such racial exclusions were declared unconstitutional by the Supreme Court in Buchanan v. Warley (1917). Burling claims that other cities enacted zoning laws “to do an end run around the Supreme Court.” The problem with this argument is that, by Burling’s own account, New York City enacted the nation’s first comprehensive zoning law in 1916—in response to well-documented concerns about Gotham’s atrocious tenement conditions (famously exposed by Jacob Riis in his 1890 book How the Other Half Lives)–before the Supreme Court invalidated racial exclusions in Buchanan v. Warley.
When the village of Euclid, Ohio subsequently enacted a zoning scheme in 1922, modeled after New York’s law and far from the specter of Jim Crow, challengers of the ordinance were not blacks or immigrants, but property owners who had bought land in the path of industrialization, hoping to profit from such development themselves. Euclid’s zoning ordinance prevented the land owners from doing so by designating their property “residential.” Burling concedes that “Neither the opposition nor the supporters of the [Euclid] ordinance were overtly racially motivated.” The affected land owners sued on the ground that the zoning ordinance diminished the value of their property by preventing industrial development. Following a complicated procedural history that Burling recounts at length, the Supreme Court upheld the zoning ordinance as a valid exercise of municipal police power in Euclid v. Ambler Realty Co. (1926).
For nearly a century, zoning laws have enjoyed the Supreme Court’s imprimatur as a lawful exercise of the police power—a status not likely to change any time soon. Why, then, would a successful and respected property rights litigator write a philippic against zoning, especially after acknowledging that the topic is “the proverbial third rail of suburban politics” and that “zoning is hugely popular” in suburban enclaves?
Three explanations come to mind. First, Burling is sincerely opposed to all forms of government regulation of land use, and regards zoning as a major culprit in creating America’s housing crisis. Even though it is inconceivable that the Supreme Court will overturn Euclid, Burling seeks to undermine public support for zoning, despite its overwhelming popularity. This explanation does not satisfy because it fails to account for the particular fervor Burling displays in his denunciation of zoning.
A second possibility is that Burling’s 40 years of land use litigation have made him a battle-hardened partisan. The temptation is strong for a single-issue advocate to become overzealous–even dogmatic; zoning is, after all, the ultimate form of land use regulation, which Burling has been fighting in other contexts his entire career. For Burling, zoning has become the obsession that Moby Dick was for Captain Ahab. Property rights scholars, Burling included, are understandably influenced by the seminal work of Bernard Siegan in opposition to zoning. (Disclosure: I made similar arguments about zoning 40 years ago in response to the same “housing crisis” that Burling laments today. [1] I explained my abandonment of this youthful position in a 2017 essay entitled “Leaving Lochner Behind.” It appears that Burling still carries a torch for Lochner.)
But this does not fully explain Burling’s gratuitous resort to racial and moral themes in his arguments against zoning, which brings us to the third (and final) explanation. Libertarians are attracted to the subject of property rights, and libertarians are prone to seeking ideological purity. “Pure” libertarians, unlike classical liberals, often resemble leftists in their political attitudes. While I seriously doubt that Burling is a man of the Left, it is possible that he uses such arguments to appeal to a broader audience by appearing to be “enlightened.” Perhaps Burling is trying to make property rights advocacy more palatable by using “woke” themes and terminology.
In any event, Nowhere to Live is inexplicably sprinkled with jarring references to “racial justice,” “the George Floyd murder,” “class segregation,” “prejudices” against poor people, “privilege,” and similar leftist idioms. Burling poo-poos the correlation between low-income housing and crime, going so far as to invoke the character Silas Lynch from the racist movie The Birth of a Nation. In a gesture that smacks of “bleeding heart libertarianism,” Burling oddly begins the book with a paean to immigration, quoting from Emma Lazarus’s 1883 poem “The New Colossus,” which is a treacly ode to the world’s poor and huddled masses, including “the wretched refuse of your teeming shore.” The connection between land use and immigration is elusive–and ill-timed when the nation faces a massive surge of illegal migrants.
Lazarus’s poem is best known due to an excerpt being displayed on the base of the Statue of Liberty (a gift from France dedicated in 1886), even though it was not originally a part of the famous structure. Seventeen years after the statue was finished, in 1903, a plaque containing an excerpt of the poem was added to the interior of the statue’s base, long after Lazarus’s death. The plaque was not moved to the main entrance of the statue until 1945. Lazarus’s poem did not inspire, and does not define, the Statue of Liberty. Leftists often cite the poem as “proof” that America embraces open borders, but that is a myth. More importantly, the poem has nothing to do with property rights. (Ironically, Lazarus was a devotee of 19th century political economist Henry George, who was hardly a proponent of the classical liberal conception of property rights.) Lazarus is an incongruous figure in a book extolling property rights.
Similarly, Burling devotes two short chapters to an off-topic discussion of how the mentally ill were de-institutionalized in the 1970s, at which point many of them became homeless. The problem has only worsened since then. He concludes that “The nation’s mentally ill are now everywhere, without adequate medical care, food, or shelter.” I don’t quarrel with that conclusion, but question how Burling can simultaneously argue that rampant homelessness—exacerbated by drug addiction and the non-enforcement in many cities of prohibitions of vagrancy, “camping” in public spaces, and similar public order laws–is caused by zoning laws. Sadly, many urban areas fit Burling’s description of “our dystopian reality.” However, homeless encampments won’t magically disappear if zoning laws were abolished. Building more houses and apartments isn’t going to eliminate the squalid tent cities serving as open-air drug dens and ersatz lunatic asylums. Homelessness is a serious problem, but Burling does not make a convincing case that it is caused, or even aggravated, by zoning laws. To me, the topic of homelessness is an unnecessary digression that detracts from Burling’s salient analysis elsewhere.
Moreover, Burling’s frequent invocation of racial themes, suggesting bigotry by residents of upscale communities wishing to maintain them as such, is insulting and factually unsupported. Racially-exclusionary restrictive covenants and housing discrimination have been illegal for decades. Preventing the overcrowding of schools and parks, avoiding traffic congestion, preserving public safety, and keeping property taxes low are legitimate objectives in a community, shared by residents regardless of race, ethnicity, or national origin. Burling’s unfortunate emphasis on social justice rhetoric is better suited for a sociology text than a scholarly treatment of property rights.
Not all communities are the same, of course. Most people can’t afford to live in Beverly Hills. But surely those who can should be able to preserve the qualities that made it a desirable place to live. It is not wrong, or immoral (as Burling suggests), for communities to oppose low-income housing that will attract poor people from other areas, especially if heightened demands on government services will increase residents’ property tax burden. In chapter 6, Burling sympathetically portrays what he concedes was naked judicial activism by the New Jersey Supreme Court in the Mount Laurel cases during the 1970s, because he agrees with the court’s decision to invalidate “exclusionary zoning,” even if it was based on “a highly creative interpretation of the [state] constitution’s text.” Burling expresses his disapproval of Mount Laurel residents’ desire “to protect the fiscal interests of the town” by opposing the construction of low-income housing.
The goal of zoning is to promote the public health, safety, and welfare of the community. By separating incompatible land uses (e.g., factories, oil refineries, strip malls, bars, hotels, gas stations) from residential areas, and creating different zones for single-family homes and apartment complexes, zoning laws protect the expectations (and investments) of homeowners, while also allowing government officials to anticipate traffic flows, parking requirements, drainage of runoff, and siting of schools and parks. Calling such community planning “economic segregation” and blaming it for keeping the poor and minorities in the ghettos strikes me as unfounded and overwrought. Many people have moved to the suburbs (or even rural areas) to enjoy lower population densities (and crime) than are typical in urban areas. This is not discriminatory, but the essence of freedom—pursuit of the “American dream.”
If zoning laws were declared unconstitutional, as Burling seems to suggest, what would take their place? What, aside from the common law doctrine of nuisance, would prevent a slaughterhouse (or a junkyard or high-rise office building or mobile home park) from being erected in the middle of a residential area? It is not a sufficient answer to suggest “voluntarily negotiated” contractual measures such as easements, covenants and deed restrictions, because for a century property owners have relied on zoning rather than Coasian self-help to regulate permissible land uses.
I applaud the work of PLF and Burling’s dedication to the protection of property rights, but respectfully disagree with his broadside critique of zoning. Otherwise, Nowhere to Live is a very informative and worthwhile book, which showcases the impressive litigation successes of the PLF team over the past 50 years.
[1] Mark Pulliam, Brandeis Brief for Decontrol of Land Use: A Plea for Constitutional Reform, 13 Southwestern University Law Review 435 (1983).
